News

Supreme Court won't hear real estate data publication case

Tara Deschamps, The Canadian Press
Published Thursday, August 23, 2018 5:35AM EDT
Last Updated Thursday, August 23, 2018 4:21PM EDT

TORONTO -- The Supreme Court of Canada's refusal to hear an appeal from the country's largest real estate board enables its member real estate agents to publish home sales data on their websites, setting a precedent that could usher in a new era of transparency for home buyers and sellers nationwide, industry experts said Thursday.

Canada's top court announced Thursday it has dismissed the application from the Toronto Real Estate Board, which represents more than 50,000 Ontario agents, ending a years-long battle.

The fight centred around a 2011 application from the Competition Bureau, a federal watchdog designed to protect consumers by investigating business policies and mergers, challenging the Toronto Real Estate Board's policy preventing the publication of such information on password-protected websites, arguing the policy restricts competition and digital innovation.

TREB fought back claiming the publication of such data was a privacy and copyright concern, but the Competition Tribunal and later the Federal Court of Appeal sided with the bureau instead, so TREB took its battle to the Supreme Court.

The top court's refusal to hear the case is significant because it was likely TREB's last chance to prevent the publication of the data. It is a sign of hope for realtors in regions across the country who want to open up data to their clients, real estate experts said.

"A lot of these local real estate boards were waiting to see what happened with this decision," said John Andrew, a real estate professor at Queen's University.

"That's going to spread to others boards across Canada. They are no longer going to try to resist this kind of demand from their own members who would like to release this kind of information and other kinds."

He's anticipating a flood of realtors will race to post data in 60 days when required under the Competition Tribunal's order. That will allow buyers and sellers to more easily educate themselves on how to price homes and negotiate, keeping them from relying on agents to send them sales information.

However, Andrew doesn't think that giving the public an easier route to finding out what homes sold for will jeopardize the livelihood of realtors or significantly change the market.

Both said they don't believe the decision will be an industry killer based on their observations of the United States housing market, where real estate agents remained in demand even after a similar case enabled consumers to access enhanced information for the last 13 years.

"Good, experienced realtors are a lot more valuable than having sold information," said Alexander.

Those currently seeking sold information predominantly turn to real estate agents and brokers, who have access to the Multiple Listing Service database, where sales data is compiled when deals close. Others rely on online property value services like Teranet or local land registry offices, which charge a fee for the public to access sales data.

The TREB case largely dealt with allowing publication of the data through virtual office websites (VOWs), which are password-protected and are usually open to a realtor's clients or people who subscribe to their website.

Now that publication will be allowed through those sites, Andrew believes the market will see a push for realtors and other companies to be able to publish the data online without using VOWs.

Interim Competition Bureau commissioner Matthew Boswell refused to speculate on whether the country will see a new fight to allow publication outside of VOWs, but said he knows real estate boards across the country were watching the case.

"This is their opportunity to look at their policies and procedures and make sure they are in compliance with the Competition Act, that they are not abusing their dominant position in their respective markets as TREB was found to have done in this case," he told The Canadian Press.

Boswell said he considered the Supreme Court's choice not to hear the case as "a decisive victory for competition, innovation and for consumers."

TREB chief executive officer John DiMichele said he "respects the decision" and noted that the board will be studying "the required next steps to ensure such information will be protected in compliance with the tribunal order," which he noted will come into effect in 60 days if it is not modified.

The Canadian Real Estate Association, which represents 125,000 realtors across the country, was also reviewing the order to determine its potential impacts.

Neither immediately said whether they were looking for a way to change the order.